P L D 2004 Karachi 109 (PLP)

Arshad Lodhi for the State. Date of hearing: 7th August, 2003. On registration of Crime No.80 of 2002 under sections 420/ 409/506-B, P.P.C. at Police Station Mubeen Town, Karachi, the applicant approached the Court of Sessions Judge, Karachi (East) for grant of pre-arrest bail. This bail application was withdrawn because the applicant as an officer of Karachi University, Anti-Corruption Court was said to be having jurisdiction in the matter. This applicant then approached the Anti-Corruption Court, Karachi for grant of pre-arrest bail which was rejected vide order dated 7-9-2002 on the ground that the applicant was not a Public Servant and the Anti-Corruption Court has no jurisdiction in the matter. The applicant has then approached this Court for grant of pre-arrest bail. Mr.Mehmood Habibullah, learned counsel for the applicant has contended that the applicant was a Controller of Examination of the University of Karachi and the case was registered against him in respect of his employment. He stated that the University of Karachi was established as a corporate body by the University of Karachi Act, 1972 passed by the Provincial Assembly of Sindh. He stated that the term "public servant" is defined in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1958 which also includes employees or corporation set up by the Government. He stated that University of Karachi being a corporation set up by Government, its employees will be public servant. In this regard he also referred to section 3-E of the Sindh Service Tribunals Act, 1973. He also arguned that the University being Government Corporation applicant as an Officer of the University will be a public servant under clause IX of section 21 of P.P.C. He has relied upon the case of Anwar Aziz Choudhry v. The State 1991 SCMR 994 and the case of the State through Advocate-General and Ex-Officio Public Prosecutor v. Qazalbash 1984 PCr.LJ 1769. Mr. Arshad Lodhi learned Assistant Advocate-General has agreed with the submissions of the applicant counsel and stated that the applicant is a public servant. I have considered the arguments of the learned counsel and have gone through the record. So far the submission of the learned counsel for the applicant that the term "Public Servant" defined in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1958 (hereinafter called the two Acts) includes employees of the Corporation set up by the Government and the University being Corporation set up by the Government, the applicant is a Public Servant, reference is made to the definition of the term, "Public Servant" in the two Acts which are similar. The definition contained in the Act of 1947 is reproduced as follows:-- "

2. Definition.-For the purpose of this Act, "Public Servant" means a public servant as defined in section 21 of the Penal Code and includes an employee of any corporation or other body or organization set up controlled or administered by or under the authority of the Central Government. " From the above definition, it is clear that it makes reference to the employees of the Corporation which is set up and controlled by the Central Government. University of Karachi though is a corporation but it is not set up and controlled by the Central Government but rather is set by by the Provincial Government of Sindh. In this view of the matter the employee of the University of Karachi will not be covered by the later part of the definition of section 2 of Act of 1947. As regards the arguments that section 3-E of the Sindh Service Tribunals Act, 1973 makes all employees of corporation set up by the Provincial Government of Sindh as Civil Servant, suffice to say that such provision has been made only for the purpose or providing remedy to such employees in the Sindh Service Tribunal with regard to the terms and conditions of their service who otherwise are not civil servant within the meaning of Sindh Civil Servants Ordinance, 1973. The next argument of the learned counsel that the applicant is section 21 of To support this argument learned counsel stated that the University of Karachi is set up by the Provincial Government of Sindh and its affairs and finances are controlled by the Government of Sindh and in this regard he has referred to various provisions of the University of Karachi Act, 1972. I have gone through the University of Karachi Act, 1972. Its preamble is as follows:-- "Whereas it is expedient to re-constitute and re-organize the University of Karachi for the purpose of giving it necessary autonomy and improving its administration." The preamble shows that the Act has been made- to give necessary autonomy and improve administration of the University. Autonomy means right of self-governing. In other words it means that by this Act, the, University of Karachi has been given necessary powers and authority to govern its affairs by itself without interference of Government section 37 provides that the University shall have a fund to which shall be credited its income from fees, donations, trust; bequest, endowments, contributions, grants and all other sources. By section 21 the Senate of the University has been given power to consider and pass annual budget. By section 23 Syndicate of the University has been given power to enter into contracts and to hold and manage the properties and funds of the University. In the same section the Syndicate has been given power to determine the form, provide for the custody and regulate the use of the common seal of the University. By section 3(3) the University has been made a body corporate with perpetual succession and a common seal and may sue and be used in its own name. Section 3(4) provides that the University shall be competent to acquire and hold property both movable and immovable and to lease, sell or otherwise transfer any movable and immovable property which may have vested in or been acquired by it. There is no mention in the whole of the Act that the funds, properties both movable and immovable is of the Government or that the fund or properties will in any event revert to the Government or that Government will be liable to any of the liabilities of the University. Merely because the Chancellor is the Governor of Sindh, the Pro Chancellor is the Ministry of Education and some members of the Syndicate are Government Officials and the accounts of the University being audited by Government Auditor will not make the funds and properties of the University that of the Government. Therefore the test for determining whether the person is a public servant as laid down by to Hon'ble Supreme Court of Pakistan in the case of Anwar Aziz Choudhry (supra) appears to wanting in the present c4se. There is no material to show that the applicant's duty was to take, receive, keep or expend any property on behalf of the Government or to make any survey, assessment or contract on behalf of the Government. Whatever functions that were exercised. by the applicant were on behalf of the University and all. property with which he may have dealt with was of the University and not of the Government. Therefore, in my considered view, the applicant is not a public servant within the meaning of clause nine of section 21 of the Penal Code. In this view of the matter, the order passed by the learned Special Judge Anti-Corruption is found to be In accordance with law and maintained. As the applicant has withdrawn his pre-arrest bail application from the Court of learned Sessions Judge, Karachi (East) on the apprehension that the applicant is a public servant and Anti Corruption Court has jurisdiction, therefore, in view of what has been said above, the applicant, may approach the appropriate Court for further relief to be granted in accordance with law. The pre-arrest bail granted to the applicant is extended 'for a further period of fifteen days from today and it will cease to operate on applicant's appearance before the appropriate Court or on expiry of fifteen days' period whichever is earlier. This Criminal Bail Application is accordingly disposed of. N.H.Q./J-63/K Order accordingly.